Treppeda v. Farmers

24CA2262 Treppeda v Farmers 11-20-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA2262
Arapahoe County District Court No. 24CV30116
Honorable Don J. Toussaint, Judge

Gena Treppeda,

Plaintiff-Appellant,

v.

Farmers Insurance Casualty Insurance Company,

Defendant-Appellee.

ORDERS REVERSED

Division II
Opinion by JUDGE BROWN
Fox and Meirink, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 20, 2025

Ramos Law, Jonathan D. Stine, Nelson Boyle, Northglenn, Colorado; Levy Law,
P.C., Marc R. Levy, Matthew W. Hall, Greenwood Village, Colorado, for Plaintiff-
Appellant

Lorber, Greenfield & Olsen, LLP, Stuart D. Morse, Konrad R. Schreier,
Greenwood Village, Colorado, for Defendant-Appellee
¶1 Plaintiff, Gena Treppeda, appeals a series of orders entered by

the district court awarding defendant, Farmers Insurance Casualty

Insurance Company1 (Farmers), its attorney fees and costs. We

reverse the court’s orders.

I. Background

¶2 In November 2022, Treppeda’s husband was struck and killed

by a motor vehicle while riding an electric scooter in downtown

Denver. At the time of the accident, Treppeda’s father (father)

maintained an insurance policy with Farmers that identified father

as the “named insured” and listed Treppeda as a “covered”

“household driver” on the policy declaration page.

¶3 Under father’s policy, Farmers agreed to “pay all sums which

an insured person is legally entitled to recover as damages from the

owner or operator of an uninsured motor vehicle because of bodily

injury sustained by the insured person” up to a policy limit of

$100,000 per person. As relevant, an “insured person” included the

1 In her complaint, Treppeda identified the defendant as Farmers

Insurance Casualty Insurance Company. The defendant indicates
that its correct name is Farmers Insurance Exchange. In its final
orders, the district court identified the defendant by the name
Treppeda used, so we follow the same convention.

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“[named insured] or a family member,” meaning “a person related to

[the named insured] by blood, marriage or adoption who is a

resident of [the named insured’s] household.”

¶4 Based on the policy declaration page, Treppeda believed that

she qualified as an “insured person” under father’s policy at the

time of the accident. And because the definition of “insured person”

included family members, Treppeda inferred that her husband

would be covered under the policy as well. Accordingly, Treppeda

filed a claim with Farmers under father’s policy, seeking payment of

uninsured motorist benefits.

¶5 In December 2022, Farmers denied Treppeda’s claim,

asserting that Treppeda’s husband was not entitled to coverage

under father’s policy. Farmers noted that the policy’s definition of

“family member” was limited to, as relevant here, individuals who

were residents of the “named insured’s” household. To qualify for

benefits for her husband’s accident, Treppeda’s husband “would

have had to be a resident of [father’s] household at the time of the

collision,” but because he was a resident of Treppeda’s household,

he was not insured under father’s policy.

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¶6 In January 2024, Treppeda filed a complaint under C.R.C.P.

57 seeking a declaration that she was entitled to coverage under

father’s policy. Treppeda alleged that she and father reasonably

expected that she would enjoy full coverage under the policy based

on (1) representations made by Farmers to father when he

purchased the policy and (2) Treppeda’s being labeled as “covered”

on the policy’s declaration page.

¶7 Farmers filed a C.R.C.P. 12(b)(5) motion to dismiss for failure

to state a claim, arguing that Treppeda was not an “insured person”

because (1) “she is not a ‘named insured’ listed on the declaration

page; the only named insured is [father]”; and (2) “she does not fit

the definition of a ‘family member’ as at the time of the collision . . .

Treppeda was not a resident of [father’s] household.”

¶8 In response, Treppeda argued that resolving Farmers’ motion

would require the district court to consider matters outside of the

pleadings, particularly as it related to Treppeda’s claim that the

parties’ reasonable expectations mandated coverage, so the motion

should be treated as one for summary judgment under C.R.C.P. 56.

Treppeda also requested leave under C.R.C.P. 56(f) “to conduct

discovery prior to [the court’s] ruling on the substantive issues in

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[her] case” to ensure that the court had complete information before

declaring the parties’ rights or obligations under father’s policy.

¶9 Treppeda also filed an affidavit from father attesting that,

when procuring the policy from Farmers, father “informed the agent

that [he] wanted [Treppeda] . . . to be covered under the policy to

the same extent that [he] was.” Father avowed that the agent who

sold him the policy said that Treppeda would receive the same

coverage as father if he agreed to pay a higher monthly premium

and to list Treppeda as a driver on the policy — so he did. As a

result, father understood that Treppeda enjoyed the same coverage

as father.

¶ 10 In May 2024, the district court granted Farmers’ motion to

dismiss, concluding that the policy language was “not open to more

than one interpretation” and that Treppeda’s complaint did not

raise a “justiciable issue or existing legal controversy.” Although

the court did not convert the motion to a summary judgment

motion, it appears to have considered materials outside the

pleadings, including father’s affidavit. The court explained that it

was “not persuaded” by Treppeda’s evidence that father paid

additional premiums to cover Treppeda or that, due to

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representations made by a Farmers insurance agent, father

“understood that [Treppeda] (and by extension, her husband) did

not have to reside in [father’s] household to be covered under the

policy.” Notwithstanding father’s sworn affidavit, the court found

“not one scintilla of evidence showing that Treppeda was

deceived (or mistakenly told) into believing that a covered driver will

remain ‘covered’ if he or she no longer resides in the household.”

Treppeda did not appeal the court’s order dismissing her claim.

¶ 11 Farmers moved for attorney fees pursuant to section

13-17-102(4), C.R.S. 2025, arguing that Treppeda’s action “[l]acked

substantial justification” and “was frivolous and groundless as [she]

had no evidence or legal grounds to support [her] claim.” The court

granted the motion, concluding that Treppeda’s claim against

Farmers was “substantially groundless.” Following a hearing on the

reasonableness of Farmers’ request, the court awarded Farmers

$16,881 in attorney fees and costs.2

2 The district court’s order included an award of costs in the

amount of $231 pursuant to C.R.C.P. 54(d) and section 13-16-
122(1)(a), (b), C.R.S. 2025. Because Treppeda does not challenge
the cost award, we leave that portion of the order undisturbed.

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II. The District Court Erred by Awarding Attorney Fees

¶ 12 Treppeda contends that the district court erred by

(1) concluding that Farmers was entitled to an award of attorney

fees under section 13-17-102(4) and (2) incorrectly determining the

amount of attorney fees it awarded Farmers. Because we conclude

that the court erred by determining that Treppeda’s claim was

“groundless,” we reverse the award of fees on that basis and need

not address Treppeda’s second contention.

A. Applicable Law and Standard of Review

¶ 13 Under section 13-17-102(4), a court “shall assess attorney

fees” against a party who brought an action “that lacked substantial

justification.” An action “[l]ack[s] substantial justification” when it

is “substantially frivolous, substantially groundless, or substantially

vexatious.” § 13-17-101.5(1), C.R.S. 2025.

¶ 14 A claim is frivolous “if the proponent can present no rational

argument based on the evidence or law in support of that claim.”

Hamon Contractors, Inc. v. Carter & Burgess, Inc., 229 P.3d 282, 299

(Colo. App. 2009) (quoting W. United Realty, Inc. v. Isaacs, 679 P.2d

1063, 1069 (Colo. 1984)). A claim is groundless “if the allegations

in the complaint, while sufficient to survive a motion to dismiss for

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failure to state a claim, are not supported by any credible evidence

at trial.” Id. at 300 (quoting W. United Realty, 679 P.2d at 1069). A

claim is vexatious if it is “brought or maintained in bad faith.” Id.

at 301 (citation omitted).

¶ 15 An award of attorney fees under section 13-17-102 is justified

only in “clear and unequivocal cases,” In re Estate of Shimizu, 2016

COA 163, ¶ 34, as a means of deterring “egregious conduct,” “not to

discourage legal theories that, while having no support in our

extant decisional law, nevertheless may be persuasive by virtue of

the unique character of the case,” Glover v. Serratoga Falls LLC,

2021 CO 77, ¶ 70 (citation omitted); see Bernal v. Lumbermens Mut.

Cas. Co., 97 P.3d 197, 203 (Colo. App. 2003) (“An unsuccessful

argument is not . . . per se groundless or frivolous.”).

¶ 16 Generally, the trial court is in the best position to determine

whether an action satisfies these standards because “[w]hether a

claim lacked substantial justification is a question of fact for the

trial court.” Argo v. Hemphill, 2022 COA 104, ¶ 51 (alteration in

original) (citation omitted). As a result, we will not disturb an

award of attorney fees on appeal if it is supported by the evidence,

unless the court abused its discretion in making the award. City of

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Aurora v. Colo. State Eng’r, 105 P.3d 595, 618 (Colo. 2005). A court

necessarily abuses its discretion if it misapplies the law. In re

Parental Responsibilities Concerning D.P.G., 2020 COA 115, ¶ 32.

B. The District Court Misapplied the Law When it Determined
that Treppeda’s Complaint Was Groundless

¶ 17 Treppeda contends that the district court erred by awarding

Farmers its attorney fees on the basis that her complaint was

groundless under section 13-17-102(4). We agree.

¶ 18 Citing Bilawsky v. Faseehudin, 916 P.2d 586, 590 (Colo. App.

1995), the court explained that “[a] claim is groundless if the

allegations in the complaint, while sufficient to survive a motion to

dismiss for failure to state a claim, are not supported by any

credible evidence at trial.” It noted that this “test assumes that the

proponent has a valid legal theory but can offer little or nothing in

the way of evidence to support the claim” and that it was Farmers’

burden to “prove that [Treppeda’s] claim was ‘not supported by

credible evidence.’” And it concluded that, “[b]ased on the totality of

the evidence, [Farmers] met this burden.”

¶ 19 The court articulated the correct standard for determining

whether a claim is groundless for purposes of awarding attorney

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fees under section 13-17-102(4). But for two reasons, we conclude

that it misapplied the standard in this case and thus abused its

discretion by awarding Farmers attorney fees.

¶ 20 First, the groundless standard is ill-fitting for a claim that is

dismissed under C.R.C.P. 12(b)(5) for failure to state a claim upon

which relief can be granted. The groundless standard presupposes

that the allegations of the complaint are sufficient to survive such a

motion and that the plaintiff has been given the opportunity to

present evidence at trial. Hamon Contractors, Inc., 229 P.3d at 300.

Neither event occurred here, where the court dismissed Treppeda’s

complaint under C.R.C.P. 12(b)(5) and conducted no trial.

¶ 21 Second, in resolving a C.R.C.P. 12(b)(5) motion, the court

“must take the allegations of the complaint as true and draw all

inferences in favor of the plaintiff.” Medina v. State, 35 P.3d 443,

452 (Colo. 2001). It can review the legal sufficiency of the plaintiff’s

allegations, but it cannot weigh evidence or make findings of fact.

See id. And the court may only consider matters stated within the

complaint itself; it may not consider information outside of the

complaint without converting the motion into one for summary

judgment. Pub. Serv. Co. of Colo. v. Van Wyk, 27 P.3d 377, 386

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(Colo. 2001); see C.R.C.P. 12(b) (“If . . . matters outside the pleading

are presented to and not excluded by the court, the motion [to

dismiss for failure to state a claim] shall be treated as one for

summary judgment and disposed of as provided in C.R.C.P.

56 . . . .”).

¶ 22 The district court not only considered father’s affidavit, it

weighed and then rejected the evidence presented in it. Then it

based both its decision to dismiss the claim under C.R.C.P. 12(b)(5)

and its award of attorney fees on that premature assessment of the

evidence. In doing so, the court erred. At the C.R.C.P. 12(b)(5)

stage, the court should have accepted the allegations in the

complaint as true and viewed them in the light most favorable to

Treppeda. If it wished to consider materials outside the complaint,

it had to convert Farmers’ motion to dismiss into one for summary

judgment and provide the parties with a “reasonable opportunity to

present all material made pertinent to such a motion by C.R.C.P.

56.” C.R.C.P. 12(b); see Van Wyk, 27 P.3d at 386. And although

the court had the discretion to permit discovery, see C.R.C.P. 56(f)

(discussing a court’s discretion to permit discovery when

considering a motion for summary judgment), it chose not to do so.

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¶ 23 Because the court could not have assessed whether Treppeda

presented “any credible evidence at trial” to support her allegations,

its determination that Treppeda’s claim was groundless under

section 13-17-102(4) was a misapplication of the law. Hamon

Contractors, 229 P.3d at 300. Thus, we conclude that the court

abused its discretion by awarding Farmers its attorney fees on this

basis, and we reverse the award.3 See D.P.G., ¶ 32.

III. Appellate Attorney Fees

¶ 24 Farmers requests an award of appellate attorney fees and

costs under section 13-17-102, arguing that Treppeda’s appeal

“lacks substantial justification and legal support.” Because we

reverse the award of attorney fees, we deny Farmers’ request.

3 Although Farmers also argued to the district court that Treppeda’s

claim was frivolous under section 13-17-102(4), C.R.S. 2025, the
court did not award fees on that basis, Marcellot v. Exempla, Inc.,
2012 COA 200, ¶ 11 (issues not decided by the trial court will not
be addressed on appeal), and Farmers did not argue on appeal that
we should affirm on that alternative basis, Compos v. People, 2021
CO 19, ¶ 35 (discussing the party presentation principle).

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IV. Disposition

¶ 25 We reverse the district court’s orders awarding Farmers

attorney fees but leave undisturbed the award of costs as that

portion of the court’s order was not challenged on appeal.

JUDGE FOX and JUDGE MEIRINK concur.

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